DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2496
TAL
Docket No: 2370-14
20 March 2015
Dear Sy
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10, United
States Code, section 1552.
Although your application was not filed ina timely manner, the
Board found it in the interest of justice to waive the statute of
limitations and consider your application on its merits. A
three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on
11 March 2015. The names and votes of the members of the panel
will be furnished upon request. your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record, and applicable statutes, regulations,
and policies.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You enlisted in the Marine Corps and began a pericd of active
duty on 4 January 1971. You served for a year and six months
without disciplinary incident, but during the period from
~i7 July 1972 to 15 March 1974, you received nonjudicial
punishment (NJP) on five occasions and were convicted by courts-
martial on three occasions. Your offenses were failure to go to
_ your appointed place of duty, resisting apprehension, breaking
restriction, and three instances of unauthorized absence (UA)
from your unit for a period totaling 106 days. On 28 May 1974,
you were in an UA status from your unit until 15 October 1974, a
period of 140 days. You made a written request for discharge for
the good of the service to avoid trial by court-martial for the
forgoing period of UA. Prior to submitting this request you
conferred with a qualified military lawyer at which time you were
advised of your rights and warned of the probable adverse
consequences of accepting such a discharge. Your request was
granted and the commanding officer directed your other than
honorable (OTH) discharge. As a result of this action, you were
spared the stigma of a court-martial conviction and the potential
penalties of a punitive discharge and confinement at hard labor.
On 12 December 1974, you were discharged under OTH conditions.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your desire to upgrade your discharge. Nevertheless, the Board
. concluded these factors were not sufficient to warrant
recharacterization of your discharge given the seriousness of
your misconduct and request for discharge. The Board believed
that Fonsiderable clemency was extended to you when your request
for discharge to avoid trial by court-martial was approved.
Further, the Board concluded that you received the benefit of
your bargain with the Marine Corps when your request for
discharge was granted and should not be permitted to change it
now. Accordingly, your application has been denied.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence within one year from the date of the Board’s decision.
New evidence is evidence not previously considered by the Board
prior to making its decision in your case. In this regard, it is
important to keep in mind that a presumption of regularity
attaches to all official records. Consequently, when applying
for a correction of an official naval record, the burden is on
the applicant to demonstrate the existence of probable material
error or injustice.
Sincerely,
ROBERT J. O'NEILL
Executive Director
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